49 posts from March 2013

03/31/2013

A prior series of posts (here, here and here) may leave the impression that I reject (as an original matter) a comprehensive national power over immigration.

It is true that I am skeptical of the common accounts given of comprehensive national immigration power, and also that in the absence of a comprehensive national immigration power I assume immigration would be (in some instances) a power of the states, which does not seem entirely implausible. However, for what it's worth, my tentative conclusion is that there is a comprehensive national immigration power arising from a different source than the ones usually identified.

As sketched in The Constitution's Text in Foreign Affairs (Ch. 10, p. 208), I suggest that it comes from the President's executive power. As I put it there, "The traditional eighteenth-century executive -- notably the English monarch -- had the power to decide when to admit aliens to the realm as part of the executive power of foreign affairs." (Citation to Blackstone, vol. I, pp. 251-52). And as I argue at length elsewhere in the book, and in my prior work with Saikrishna Prakash (here and here), the best understanding of the President's Article II, Section 1 "executive Power" is that it includes the traditional powers of the executive to the extent they are not allocated elsewhere by the Constitution's text.

As a result, in the first instance the President has the power to say which aliens are to be excluded. However, the President needs legislative support to effectuate this power. Congress' necessary and proper powers extend to legislation necessary and proper to support the powers of other branches. Thus Congress, in support of the President, has a comprehensive legislative power over immigration.

I concede that this idea remains tentative, and that I'm not aware of founding-era commentary directly in support.

03/30/2013

Supreme Court Justice Antonin Scalia has repeatedly asserted that same-sex marriage is an easy question for originalism; it is clearly not within the Constitution’s purview. The purpose of this Article is to challenge that claim by illustrating how an originalist could find that denying same-sex marriage contravenes the original public meaning of the Fourteenth Amendment. It seeks first to ascertain the original public meaning of Section One of the Fourteenth Amendment. The Article finds that Section One may serve as a prohibition on systems of caste and class legislation or alternatively as a ban on partial or special class legislation that singles out a group for a particular benefit or burden. As to the former, it explores the scientific research on the psychobiological roots of homosexuality, the historical treatment of homosexuals under American law, and present areas of legal inequality of homosexual relative to married heterosexual couples. It seeks to establish that a system of caste likely does exist, and that an originalist may find denying same-sex marriage to be an unconstitutional perpetuation of that system. As to the latter, if the original public meaning of the Amendment is to constitutionalize the antebellum practice of prohibiting laws which single a group out for a special burden, it argues that an originalist may find denying same-sex marriage to be an unconstitutionally targeted burden. The aim of this Article is not to impose upon originalism a definitive answer to the same-sex marriage question, but rather to illustrate how an originalist could legitimately find denying same-sex marriage to be unconstitutional. At the least, the Article demonstrates that same-sex marriage demands of originalism deep consideration and is not the easy question Justice Scalia believes.

This article, which was posted before I wrote my initial post on originalism and same-sex marriage (but brought to my attention afterward), appears to make a similar argument. My apologies to Grant Darwin for not noting it earlier. Anyone who thinks same sex marriage is an easy question for originalists should take a close look at it.

Modern statutory interpretation is a field dominated by court-created legal presumptions. Federal judges have created hundreds of default rules that range from subject-specific presumptions such as the rule that exemptions in the tax code should be narrowly construed to trans-substantive presumptions such as the presumption that ambiguous statutes should not be interpreted to preempt state law. At the same time, the legal status of statutory interpretation methodology remains almost completely unexplored. What are the rules of statutory interpretation? Almost all jurists and scholars resist the notion that they are “law,” despite their judicial source and also despite the fact that analogous interpretive principles like those from contract and constitutional law are, in fact, treated as some kind of law (be it state law, federal common law, “constitutional common law,” or constitutional law); and despite the fact also that even some statutory interpretation rules — notably Chevron and the thousands of legislated rules of statutory construction scattered across the U.S. Code — are already treated as law without justification for the distinction. Meanwhile, the debate that continues to rage in other contexts over the propriety of federal judicial lawmaking has somehow bypassed the world of statutory interpretation.

The resistance to a law-like treatment of interpretive methodology has many possible explanations, including a judicial desire to retain power or flexibility in an increasingly statutory world, or the simple fact that judges cannot reach consensus on what rules they would treat as law in the first place. The resistance also likely stems from the long shadow that Erie has cast on federal judicial lawmaking. But Erie was case for the world of common law, not one for the Age of Statutes. We had Erie, and then we had Chevron, but along the way we had no analogous case for the statutory era — one that directly addresses what kind of authority federal courts have to create decision-making doctrines for the statutory cases that now dominate the docket

Exploring this possibility — that statutory interpretation methodology is some kind of judge-made law — allows for some significant interventions. A common-law conceptualization of interpretive methodology, for instance, implies that Congress can legislate over it, but courts continue to resist that notion. A law-like conceptualization also would seem to imply that the rules of interpretation should receive stare decisis effect, which they currently do not. There is also the possibility that some of the canons might be federal common law, while others might not. Some, for example, might be understood as constitutional law, while others may seem not to be judicial creations at all. The canons typically have not been disaggregated in this manner, despite their centrality in countless cases.

While not at all originalist in orientation, this outstanding paper raises what I see as a very serious challenge for originalism. As reflected in last year's book by Justice Scalia and Bryan Garner, canons of interpretation are central to textualist/originalist methodology; indeed, one might say that the book sees the canons as constituting almost the whole of textualist methodology. Yet the book says almost nothing systematically about the source of the canons. As Professor Gluck's paper makes clear, the canons are substantially under-theorized but it is at least plausible to conclude that they are judge-made (and evolving) law. And that conclusion seems hard to reconcile with originalism, at least to the extent that the canons do material work in deciding cases.

03/28/2013

I had a couple of Thursday-afternoon-quarterbacking reactions on the gay-marriage cases this week.

First, some of the justices expressed skepticism yesterday at the Windsor oral argument about the coherence of enforce-but-don't-defend policies. Justice Scalia said at 21, "I'm wondering if we're living in this new world where the Attorney General can simply decide, yeah, it's unconstitutional, but it's not so unconstitutional that I'm not willing to enforce it... I don't want these cases like this to come before this Court all the time." Chief Justice Roberts asked at 12, "[I]f he has made a determination that executing the law by enforcing the terms is unconstitutional, I don't see why he doesn't have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, oh, we'll wait till the Supreme Court tells us we have no choice."

As I've mentioned here, and expand upon in my article here (at 51-52), I think these reactions to the administration's position conflate the issue of constitutionality per se with the issue of knowledge of constitutionality. Scalia's question imagines that the executive is saying that unconstitutionality itself is a matter of degree, or scalarity: statutes that are not "so unconstitutional" get to be enforced, but not defended. But we can instead put the point in epistemic terms, so that clarity, rather than unconstitutionality, is the scalar phenomenon. That formulation makes it much stronger. Statutes might be not so clearly unconstitutional that the executive would be justified in not enforcing them, and yet still seem to the President to be unconstitutional by a preponderance of the evidence. Roberts asks why the president doesn't have the "courage of his convictions." But it is possible that he lacks, not courage, but evidence, i.e., strength of conviction itself. A mid-range level of courage like enforce-but-don't-defend is appropriate to a mid-range level of conviction.

Non-enforcement of federal statutes--that is, executive review--surely requires sufficient evidence to justify confidence in a constitutional pronouncement, just as judicial review does. But the constitutional defense of a statute--that is, the representation to courts that a statute is in fact constitutional--requires at least a minimal belief in those representations. If the president believes that a statute is probably unconstitutional, but not (at this point) sufficiently clearly so for executive review, then it seems that an enforce-but-don't-defend policy is justified. To require the executive to choose, in all cases, between non-enforcement and full defense of the constitutionality of statutes will thus require either (a) executive pronouncements of unconstitutionality based on a mere preponderance of the evidence, which might be very slim evidence indeed, or (b) insincere executive pronouncements of constitutionality, i.e., contrary to the executive's assessment of the preponderance of the evidence.

Second, Justice Kagan asked at the Hollingsworth oral argument (at 17) about the possible causal mechanism between expansion of the term "marriage" and the extent of its positive social valence for traditional applications of the term. As I noted here and here (at 22-23), trademark dilution seems like the obvious analogy. The "drawing power of a congenial symbol" can be diluted, leading to the "gradual whittling away or dispersion of the identity and hold upon the public mind of the mark or name."

No. Here's why. A literal interpretation of the equal protection clause might justify striking down all laws (since all laws treat some people differently than others) or no laws (since even the most discriminatory law can be applied to everyone "equally"). I would think that an originalist interpretation of the equal protection clause would have to start with the original expected application (ie, the "garden variety case" that the clause was expected to prohibit) in order to invest it with a coherent and plausible meaning.

This process might lead to the plausible conclusion that gays and lesbians are protected (as a class, not just as individuals) under some circumstances, based on an evolving understanding that they have immutable characteristics analogous to race. However, I don't see any plausible way that it could go so far as to establish a right to same-sex marriage. That’s because while the framers of the 14th amendment may not have understood the relevant facts about gays and lesbians, they certainly understood the relevant facts about marriage and they evidently did not believe that treating marriage as a classification denied equal protection to the unmarried. This means that there is something about the marriage relationship as the framers understood it that warrants different treatment and makes it not a violation of equal protection to treat married people differently than unmarried people.

Of course, it is possible that whatever is inherent in the marriage relationship to justify the differential treatment between the married and the unmarried is unrelated to the nature of the husband-wife relationship as the framers understood it (and as it had been understood throughout all of human history to that point). Possible, but not plausible. Moreover, if originalist theory is so malleable as to embrace such a conclusion, its hard to see how it is distinguished from a constitutional theory that just says judges are empowered to apply any theory of equality that they like, or that enjoys currency at that time.

03/27/2013

[Editor's note: for this post we welcome guest blogger Andrew Hyman, a frequent commentator on this blog, with a counterpoint to my post here and an interesting textualist view of the equal protection clause. --MDR]

No state shall deny to any person within its jurisdiction "the" equal protection of the laws.

The definite article "the" is important here, especially since the sentence would make good sense without it. The word "the" very likely signifies the degree of equal protection that already existed in 1866 (e.g. among white males), so that protection would thenceforth be available to everyone else too. Just like "the freedom of speech" in the First Amendment very likely signifies the level of protection that already existed in 1791. In the context of other evidence, this interpretation of the Equal Protection Clause is compelling.

Justice John Paul Stevens once said: “I emphasize the word ‘the’ as used in the term ‘freedom of speech’ because the definite article suggests that the draftsmen intended to immunize a previously identified category or subset of speech.” Likewise, Justice Thomas once wrote that the scope of “the freedom of speech” is determined by the “practices and beliefs of the founding generation.” Ditto Justice Scalia. It may at first seem silly to imagine that so much hinges on such small and ordinary words, but, as Professor Solum has recently written in the context of the Recess Appointments Clause, “These are powerful words that allow us to communicate with one word, complex ideas that would otherwise be quite cumbersome.”

The primary argument against construing the word "the" this way in the Equal Protection Clause is that equal protection of the laws did not already exist in 1866, unlike freedom of speech which did already exist in 1791. But that argument is incorrect; it was well-understood in 1866 that equal protection did already exist, at least among white males, and the intended purpose of the Clause was mainly to extend that equal protection to cover more people, especially African Americans.

Prior to the Fourteenth Amendment, equal protection of the laws was already considered to be the basis of American government. If that was not abundantly clear from the Declaration of Independence, Justice Samuel Chase spelled it out in a federal circuit court case in 1800: “Your government secures to every member of the community…equal protection of the law, and an equal security for his person and property.” The Supreme Court chimed in as follows on January 14, 1867 (a year and a half before the 14th Amendment was adopted): "The theory upon which our political institutions rest is, that all men have certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; and that, in the pursuit of happiness, all avocations, all honors, all positions are alike open to everyone, and that in the protection of these rights all are equal before the law" (emphasis added). The Equal Protection Clause expanded who was covered by the equal protection that already existed, inviting many more people into that pre-existing community of equals.

To the extent that whites generally had a right to equal public education in 1866, blacks were to have that right too. In the same way, the Clause protects the long list of equal rights enumerated in the Civil Rights Act of 1866, officially titled "An Act to protect all persons in the United States in their Civil Rights" (emphasis added). The Equal Protection Clause made the Civil Rights Act effectively unrepealable by Congress. Of course, if a state were to equally deny some protection to everyone equally, then that would not change the level of equal protection afforded by the state.

So, how does all of this apply to marriage? Before the Fourteenth Amendment, states generally protected white people equally in their right to get married, so that was part of the equal protection of the laws circa 1865. The Equal Protection Clause has been very properly construed to extend that equal protection to include people of other races too, while rejecting the notion that mixed-race offspring are legally inferior to white people.

And how about same sex marriage? Needless to say, there was no same sex marriage in the 1860s, even among white males, who were widely viewed as being equally protected by the law. This does not mean that same sex marriage is now unconstitutional, of course. It merely means that the American people are free to decide the issue without being bound by anything said or done in the 1860s, and are free to balance the equality principles of the Declaration of Independence together with the best interests of children, without being ordered how to do so by judges.

Originalist scholarship about the Equal Protection Clause is very diverse, and addressing that diversity is impossible in a blog post. But it is worth mentioning some examples. Professor Calabresi says that the Clause only applies to the administration of the law, instead of banning the making or formation of discriminatory laws. Professor Harrison says that the Clause does apply to the making of some discriminatory laws, but only ones that involve direct protection from violence. Professor Green says that the Clause requires not just equal protection, but “full” protection. Professor Saunders says that the Clause was directed against special laws as opposed to general laws. Professor Ramsey says that the understanding of the facts surrounding sexual orientation have changed since 1868, and so the application of the Clause to those facts may have changed too.

As an originalist who is also a textualist, I recommend focusing on the words of the Clause, and their public meaning at the time they were written and adopted. By that standard, the word “the” seems important, no less than the word “protection” in the Clause. The word “protection” was likely used in the Clause because the Civil Rights Act of 1866 was all about “protect[ing]” people (see the official title of that Act). Moreover, as one congressman put it in 1871, “unexecuted laws are no protection,” so merely requiring equal laws would not have been effective. That’s my understanding, and I hope to get around to a full law review article on the subject (no promises though). Many thanks to Mike Ramsey for inviting this blog post.

03/26/2013

On March 26, 2013, on the first day of oral argument in Hollingsworth v. Perry, Justice Scalia challenged attorney Theodore Olson as to precisely when it became "unconstitutional to exclude homosexual couples from marriage?" Olson responded by asking rhetorically, "When did it become unconstitutional to prohibit interracial marriages?" Justice Scalia answered, "It's an easy question, I think, for that one. At the time that the Equal Protection Clause was adopted."

This study addresses this latter question, but provides a somewhat different answer: At the time that the Privileges or Immunities Clause was adopted.

This study considers substantial historical evidence, much of which has not been addressed by contemporary legal scholars, and challenges the widespread belief that the authors of the Fourteenth Amendment did not expect it would adversely affect "anti-miscegenation" (or racial-endogamy) laws.

This study proves, by a strong preponderance of the evidence, that the Fourteenth Amendment, as understood by the officials that proposed, ratified, and initially interpreted it, precluded the making or enforcing of racial-endogamy laws, insofar as such laws prohibited or invalidated interracial marriages between citizens of the United States.

In particular, this study concludes: (1) that before the Fourteenth Amendment, most authorities agreed that racial-endogamy laws abridged a pre-existing, common-law right, which right represented a privilege of citizenship; (2) that during the adoption of the Amendment, both proponents and opponents generally declared, acknowledged, or conspicuously failed to deny, that the Amendment would invalidate such laws; (3) that within five years of the Amendments' adoption, on the eve of the Slaughter-House Cases, such laws were either non-existent or unenforced in a clear majority of the states, in large part because Republican officials—including nearly every Republican judge to face the question—concluded that African Americans’ entitlement to the status and privileges of citizenship precluded the making or enforcing of such laws; and (4) that the contrary holdings were made by Democratic judges hostile to Reconstruction, whose hostility was manifest in their implausible interpretation of the Amendment. The study ends with a reflection on how the Slaughter-House Cases facilitated the rejection of the original understanding, and thus the partial nullification of the Fourteenth Amendment through the renewed making and enforcing of racial-endogamy laws.

Last week I attended an outstanding conference at Notre Dame Law School on "The Constitution and Unwritten Law." It featured a number of papers that are not originalist in direct orientation but which have important implications for originalist analysis. To the extent they are publicly avaliable, I'll post links to them this week with very brief comments. This is the first -- Randy Kozel (Notre Dame Law School): Settled Versus Right: Constitutional Method and the Path of Precedent. Here is the abstract form SSRN:

Flawed constitutional precedents give rise to a jurisprudential dilemma. On the one hand, there is the value of allowing the law to remain settled. On the other hand, there is the value of getting the law right. But while the virtues of constitutional settlement have received extensive scholarly and judicial attention, the value of interpretive accuracy has gone largely unexamined. Rectifying the deficiency depends on bridging the longstanding divide between constitutional precedent and interpretive method.

This Article provides a systematic analysis of the ways in which theories of precedent are — and are not — derivative of overarching methods of constitutional interpretation. It demonstrates that although certain consequences of deviating from precedent can be studied in isolation, the ultimate choice between overruling and retaining a flawed opinion requires the integration of a broader interpretive method. Moreover, because a single interpretive philosophy may be derived from multiple normative baselines, jurists and scholars must press beyond the threshold election of competing methodological schools to engage with their respective underpinnings. Whether one’s preferred interpretive approach is originalism, living constitutionalism, or otherwise, the value of getting the law right depends on methodological commitments and the normative premises that inform them.

Recognizing this interdependence provides a fresh perspective on longstanding debates over the constitutional dimensions of issues including free speech, abortion, criminal procedure, and affirmative action. It also exposes the dissonance that pervades the relationship between precedent and pluralistic approaches to constitutional adjudication — a dissonance that calls into question the very validity of pluralism as a mode of constitutional reasoning.

This paper has more to say specifically about originalism than the abstract suggests. In particular, it has an insightful analysis of different justifications for originalism and why the different justifications imply different approaches to precedent (all of which sounded exactly right to me).

03/25/2013

Almost everyone assumes that there is no originalist case for constitutionalizing same-sex marriage. Same-sex sexual activity was generally illegal at the time the Fourteenth Amendment was adopted and remained so thereafter, so it seems obvious that no one then thought such activity to be constitutionally protected.

In this post I will explore whether there is nonetheless an originalist case to be made for constitutional protection. My aim is not to be definitive, but to show that the question is more difficult than commonly assumed.

To begin, I assume that the Fourteenth Amendment’s equal protection clause establishes an anti-discrimination or equal treatment rule, as apparently understood by the Supreme Court in Strauder v. West Virginia (1879) and Yick Wo v. Hopkins (1886), and by Justice Harlan’s dissent in Plessy (and as applied in modern law). I further assume that, as an original matter, the rule of equal treatment applies to marriage in the way indicated by the result in Loving v. Virginia -- that is, it is unequal treatment to say "x" can marry "y" but "z" cannot when the only relevant difference between "x" and "z" is a racial difference. (I recognize that many originalists would not accept these threshhold assumptions, but I don't think they are radically out of step with an originalist approach).

The focus, then, is on the original public meaning of “equal” in the equal protection clause. I will further assume the word had an original public meaning of (at minimum) non-discrimination on the basis of characteristics such as race (but not only race, or the clause would have proscribed only race discrimination). Thus the question is whether sexual orientation is a characteristic like race. Clearly people at the time the clause was adopted didn’t think so, because apparently no one thought the clause protected same-sex sexual conduct. Though this is sometimes called an “original expected application” it is (especially in this context) highly probative of original meaning: the best explanation of the expected application is that whatever “equal protection” meant to people in 1868, it did not mean constitutional protection of same-sex relationships.

That, though, may not be the end of the argument. It is possible that understandings of the facts underlying sexual orientation might change in a way that would affect sexual orientation’s status under the fixed meaning of “equal.” While original public meaning methodology must apply the fixed meaning of the constitutional term, changes in knowledge might change the application of that fixed meaning to particular facts.

Suppose, for example, a federal statute is enacted that provides benefits for producers of “healthful” foods. At the time of enactment, everyone assumes that butter is a “healthful” food within the meaning of the statute (although butter isn’t the main point of the statute); “healthful” means good for the human body, and everyone thinks butter is good for the human body. Many years later, however, suppose a different scientific understanding emerges: contrary to what was previously believed, butter has no nutritional value and has numerous adverse effects on human health. An originalist could now say, I think, that butter does not qualify as a “healthful” food under the statute. This conclusion does not depart from the original public meaning of “healthful.” It arises only from discovery of new facts that change butter’s status under that original meaning. In other words, in applying the statute originalism requires a fixed meaning of “healthful” but it does not (necessarily) require a fixed understanding of butter. (The situation might be different if the statute had been specifically enacted to aid butter producers, but I assume that was not the case).

A similar argument might be made for constitutional protection of sexual orientation rights. Our understanding of sexual orientation today may be factually very different from the nineteenth century understanding. Suppose that in the nineteenth century people regarded same-sex sexual activity as merely an inappropriate and arguably harmful behavior like, say, adultery. On this view, laws disfavoring same-sex sexual activity (like laws disfavoring adultery) might not raise equal protection concerns because they are not akin to discrimination on the basis of a characteristic such as race. Further suppose, however, that today scientific and sociological understandings have come to regard same-sex sexual orientation as constituting a characteristic like race. We might then be justified in thinking that discrimination on the basis of sexual orientation (or same-sex sexual conduct) raises similar issues as discrimination on the basis of race.

In this way, we might conclude that sexual orientation discrimination violates “equal” treatment in the sense that “equal” was understood by the drafters and ratifiers of the Fourteenth Amendment. As in the butter hypothetical, the meaning of “equal” has not changed; rather, the understanding of the facts surrounding sexual orientation have changed. Nothing in this analysis violates the fixed meaning canon at the core of originalist methodology, just as the changing treatment of butter in the hypothetical does not involve a change in the fixed meaning of “healthful.” The meaning of the relevant text has not changed; facts relevant to the text’s application to a particular circumstance have changed (or, rather, are now understood differently).

To be sure, this argument rests on several contestable assumptions. But though the assumptions may be contested, I don't think they are unreasonable. My goal is only to show that an originalist constitutional case against sexual orientation discrimination is plausible, not that it is conclusive.